Death Row Inmate Campaigns Against Alito’s Nomination to Court

By Seamus Mcgraw

Published December 30, 2005, issue of December 30, 2005.
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You might think Antuan “Tony” Bronshtein would be grateful to Judge Samuel A. Alito, President Bush’s nominee to replace Justice Sandra Day O’Connor on the U.S. Supreme Court.

After all, Bronshtein, a convicted killer and Pennsylvania death row inmate, has a new lease on life, at least temporarily, thanks to Alito’s controversial decision as a federal appeals judge to set aside Bronshtein’s death sentence.

But he is not grateful.

Instead, Bronshtein is campaigning to block Alito’s Supreme Court nomination.

In letters written from his prison cell to members of the U.S. Senate and the press, the Soviet-born convict argues that Alito violated established law, his own writings, and Bronshtein’s civil rights — all to burnish his reputation as a hard line, pro-death penalty judge and improve his Supreme Court prospects.

Bronshtein first made his claims in a hand-written court filing last June, four months before Alito’s nomination. He elaborated on them in a series of telephone interviews with the Forward from the State Correctional Institution in Waynesboro, Pa.

In his court filing, Bronshtein described Alito’s April 2005 ruling as “a dishonorable and politically motivated affront to justice.”

Bronshtein said that although Alito heard arguments in his case in April 2003, he stalled his ruling for two years, waiting until after Bush’s November 2004 reelection, because he knew he was a potential high court nominee.

“If Bush hadn’t been reelected,” Bronshtein said, “he would have thrown out the conviction,” instead of merely setting aside the death sentence.

There is little direct evidence to support Bronshtein’s claim that Alito’s high court ambitions colored his decisions — although the claim showed prescience, if nothing else, coming four months and two nominations (John Roberts and Harriet Miers) before Alito was named on October 31.

But there is considerable support for Bronshtein’s broader claims about his case. Legal scholars and death penalty opponents say his conviction was flawed by blatantly incorrect rulings from the bench, and question the rejection of his appeals on the basis of his missing the filing deadline. Both Amnesty International and the Union for Reform Judaism have questioned the treatment of his case.

As for Alito’s 35-page ruling last April, even the prosecutors who put Bronshtein away agree it is deeply flawed, raising more questions than it answers.

Born in 1970 in Kishinev, Soviet Moldova, Bronshtein came with his family in 1978 to Philadelphia, where his parents divorced and he drifted into drugs and petty crime. He was sentenced to death in 1994 for the murder of a suburban Philadelphia jeweler, Alexander Gutman, who was shot in the face in 1991 during what police described as a botched holdup. Bronshtein insists he is not guilty and says he would rather be executed than see his conviction stand.

His case first won national attention when he was scheduled to die on April 8, 1999. The date coincided with the last day of Passover, drawing protests from Pittsburgh rabbis who said it was offensive for a Jew to be executed on a religious holiday. The protest drew the attention of Harvard law professor Alan Dershowitz, who brought in a high-powered Philadelphia law firm, ramping up Bronshtein’s legal efforts.

Though sentenced to die for the murder of Gutman, which he denies, Bronshtein first came under police suspicion because of his confession in the unrelated killing of another jeweler, Jerome Slobotkin.

According to court records, Bronshtein contacted Montgomery County police by phone on February 27, 1991, six weeks after Gutman’s murder, and admitted to the Slobotkin slaying.

“I confessed to a crime that I had involvement in,” Bronshtein told the Forward. He said he “didn’t set out to murder Mr. Slobotkin,” but “I’m the one that pulled the trigger.”

While discussing the Slobotkin case, Bronshtein said, authorities pressured him to admit to the Gutman slaying. He insists that the killing was carried out, as court records put it, by “a ‘Mr. X.’ whom Bronshtein described as a high-level member of the ‘Russian Mafia.’” He later identified the man as another Pennsylvania jeweler, who was never located or charged.

Prosecutors presented witnesses who placed Bronshtein at the scene of Gutman’s slaying, but they were never able to provide conclusive evidence that he had pulled the trigger. Eventually, however, authorities did come up with a witness, one Wilson Perez, who testified that Bronshtein admitted the Gutman killing to him. Bronshtein denies that, but offered no explanation for Perez’s testimony, saying only, “there was absolutely no evidence of me ever even being seen with a gun.” Bronshtein maintains police actually traced the gun to another man.

At his trial, Bronshtein maintained he had worked for Mr. X as a jewelry fence and, according to court records, “had merely accompanied [him] to Gutman’s store, without knowing that [Mr. X] was going to kill him.”

Bronshtein’s lawyers believed they had a strong defense, said Peter Rossi, who later represented Bronshtein on appeal. “The defense attorney told me he thought he was going to get the guy off,” Rossi told the Forward.

But the trial was flawed from the beginning, Rossi said. The flaws began during jury selection, when two jurors, both with Jewish-sounding names, were stricken from the list. That raised what Rossi believed was a possible challenge, based on a 1986 Supreme Court ruling, Batson v. Kentucky, prohibiting the disqualification of potential jurors on the basis of race. Some federal rulings have defined Jews as a “race.”

The reasons for the two jurors’ dismissal remain controversial. The defense claimed both were removed by the prosecution because of their ethnicity. The prosecution said one juror was dismissed for unrelated reasons, and it questioned the other because she had attended a Quaker high school, raising concerns that she might not be willing to impose the death penalty.

The trial judge brushed aside defense concerns about ethnicity saying at one point that he did not believe Jews constituted an ethnic group as defined by the Batson ruling. The trial judge’s statement was later challenged by higher courts.

But the most damning flaws occurred during the trial judge’s charge to the jury at the end of the trial, in which he instructed them — erroneously, by all accounts — that they could find Bronshtein guilty of first degree murder “without finding that he had specific intent to kill,” as a federal appeals court later wrote. The judge also failed to tell the jurors that if they convicted Bronshtein and did not impose the death penalty, he would face life without the possibility of parole.

Though the judge later corrected himself, the jury convicted Bronshtein and sentenced him to death.

Bronshtein initially refused to file an appeal, insisting that although he was not guilty of murdering Gutman, he would rather die than spend the rest of his life in prison. He even fought — successfully — for dismissal of an appeal petition filed by a group of attorneys, acting with the consent of his mother and other relatives. At that point, as the state’s deadline for appeals passed, Bronshtein was on his way to becoming the first inmate to be executed in Pennsylvania under the state’s new capital punishment statute.

He later had second thoughts, however. In 1999, he filed his own appeal in state court. The court rejected it as untimely. He then turned to the federal courts.

In 2001, U.S. District Judge Lowell A. Reed Jr. in Philadelphia agreed to hear Bronshtein’s case. Reed overturned both the conviction and the sentence, and ordered a new trial.

Montgomery County District Attorney Bruce Castor appealed the ruling to the Third Circuit U.S. Court of Appeals — the court where Alito has sat for the past 15 years — arguing that because Bronshtein had failed to meet the state deadline, the federal courts lacked jurisdiction and should not have taken up the case. In April 2003, a three-judge panel, including Alito, agreed to review Castor’s appeal.

In Bronshtein’s view, Alito already knew then that he was on Bush’s short list for a Supreme Court vacancy. “From what I can tell, Tony thinks that Alito is using him as a stepping-stone to the Supreme Court,” Rossi said.

To that end, in Bronshtein’s view, Alito took an unusually complicated approach in his April 2005 decision. Alito rejected the lower court’s ruling that the conviction be overturned, writing that although the state’s case was fraught with errors — among them the possible violation of Bronshtein’s rights under Batson and the judge’s controversial charge to the jury — none of those affected the case’s outcome. Still, Alito agreed with the lower court that the sentencing phase was flawed and that a new penalty phase must be held.

Alito ruled that Bronshtein’s change-of-heart appeal was rejected because of a state deadline that “was not firmly established and regularly applied” at the time, though it has since been revised. As a result, the federal court had jurisdiction, Alito wrote.

The irony, said Rossi, is that despite Alito’s reputation as a hard-line, pro-prosecution conservative, his Bronshtein ruling takes “a pretty, you know, liberal position.”

“That’s a position that’s not going to be popular,” Rossi said, adding that “if the government is appealing Alito, you know, you’ve got to scratch your head a little bit.”

The ruling has satisfied no one. In June, Bronshtein filed a 96-page handwritten petition asking the Third Circuit en banc — meaning the entire court — to review Alito’s ruling. Bronshtein contends that that Alito’s findings were “arbitrary” and “clearly motivated by politics, not the law.” Bronshtein has also asked that his attorneys, whom he alleges mishandled his case, be replaced.

That petition was eclipsed in September when Castor, arguing that Bronshtein had simply turned to the federal courts because “he thinks he has a better shot in federal court than the state courts,” appealed Alito’s ruling to the Supreme Court. “The decision by the circuit court is at odds with some…circuits in the country and in agreement with some others…so it is a question that is not settled nationally and I think the Supreme Court needs to settle the controversy once and for all,” Castor said.

The Supreme Court is expected to decide whether to hear the case in the next few weeks.

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